Can A Beneficiary Witness A Will? (ACT)

In the ACT, there are a number of requirements for a will to be valid. These include that the will must be in writing (either typed, printed or handwritten), that the document is signed by the testator and by two adult witnesses. Traditionally, witnesses could not be interested parties; however, a number of states and territories have now abolished this rule. This article examines whether a beneficiary can witness a will in the ACT.

Can A Beneficiary Witness A Will?

In the ACT, unlike in Queensland and New South Wales, any adult can witness a will, including someone who is a beneficiary. This means it is common for family members of the testator to witness wills.

In the ACT, a person can witness the execution of a will in the ACT provided they:

  • Are at least 18;
  • Have legal capacity;
  • Can see, as the signature must be witnessed visually.

The witnesses to a will’s execution should be able to be identified and located if they are needed to give evidence of the fact that the testator signed the document.

Can An Executor Witness A Will?

Under section 19 of the Wills Act 1968, a person who is an executor of a will is not disqualified from witnessing the will’s execution. 

Can A Beneficiary Witness A Will In Other states?

The law surrounding whether a beneficiary can witness a will differs between different jurisdictions of Australia.

In South Australia, Victoria and Western Australia, there is nothing to prevent a person from benefitting from an estate where they witnessed the will’s execution. In these jurisdictions, family members commonly witness wills.

In New South Wales and Queensland, a will must be witnessed by two independent adults. If a beneficiary witnesses a will in either of those jurisdictions, the will is void to the extent that the witness benefits from it. This means that having one of your beneficiaries witness your will may result in partial intestacy. Partial intestacy will occur if the testator does not include a residue clause, setting out how the remainder of the estate is to be dealt with after specific assets have been distributed.

In the absence of a residue clause, the assets that were bequeathed to the witness will be distributed under the laws of intestacy. If there is a residue clause, the assets bequeathed to the witness will be distributed along with the remainder of the estate as the testator has set out in the will.

Challenging A Will

Many people are not aware that challenging a will and contesting a will are different things. A person challenges a will when they dispute the validity of the will. This may be on the basis of doubts about the testator’s testamentary capacity, because of evidence of fraud or undue influence or because it was not executed according to the formal requirements – for example, the testator was not over 18.

When someone challenges a will, the Supreme Court must look at the evidence surrounding its execution and decide whether it is valid and can be upheld.

If the will is upheld, the estate can be administered according to its terms. If it is not upheld, the estate must be dealt with according to the laws of intestacy.

Contesting A Will

A person contests a will if they believe its provisions are unfair. This usually occurs when a family member of the testator claims they have not been adequately provided for and seeks further provision out of the estate. A will may be contested even if there is no dispute as to its validity.

Seek Advice Before Making A Will

If you are thinking of making a will, you should seek the advice of a lawyer to ensure the will complies with formal requirements and will be regarded as fair. This reduces the chances of the will being subject to a challenge or contest. Although in the ACT there is no rule preventing beneficiaries from witnessing wills, there are other bases on which a will’s validity may be called into question, particularly where it was prepared without a lawyer. 

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers. 

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts, a Master of Arts and a Graduate Diploma in Legal Practice. She practised law for eight years, working in criminal defence, child protection, domestic violence and family law in the Northern Territory and Queensland.
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